Islam v Director-General, Justice and Community Safety Directorate

[2024] ACTCA 22

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Islam v Director-General, Justice and Community Safety Directorate

Citation: 

[2024] ACTCA 22

Hearing Date: 

10 May 2023

Decision Date: 

18 July 2024

Before:

McCallum CJ, Baker and Rangiah JJ

Decision: 

(1)  The Appeal is dismissed.

Catchwords: 

APPEAL – HUMAN RIGHTS – prison discipline procedures – right to humane treatment while deprived of liberty – right to protection from cruel, inhuman or degrading treatment and punishment – where disciplinary charge form not signed by detainee – where corrections officer proceeded as if charge was admitted in contravention of Corrections Management Act 2007 (ACT) – whether form was unclear – whether promulgation of form breaches human rights – whether consequential imposition of punishment was in breach of human rights – appeal dismissed

Legislation Cited: 

Administrative Decisions (Judicial Review) Act 1989 (ACT)

Corrections Management Act 2007 (ACT) ss 9, 14, 156, 158,159, 167, 168, 170

Human Rights Act 2004 (ACT) ss 10(1)(b), 19, 40, 40B, 40C

Cases Cited: 

Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564

Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; 194 CLR 247

Castles v Secretary to the Department of Justice [2010] VSC 310; 28 VR 141

Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83; 18 ACTLR 1

Eastman v Chief Executive Officer of the Department of Justice and Community Safety [2010] ACTSC 4; 4 ACTLR 161

Islam v Director-General of the Justice and Community Safety Directorate [2015] ACTSC 20

Islam v Director-General, Justice and Community Safety [2022] ACTSC 124; 369 FLR 417

Islam v Director-General, Justice and Community Safety Directorate [2021] ACTSC 33

Kudla v Poland (2002) 35 EHRR 11

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421

Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; 238 CLR 627

Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319

Taunoa v Attorney-General [2007] NZSC 70; [2008] 1 NZLR 429

Taunoa v Attorney-General (2004) 7 HRNZ 379

Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) [1993] FCA 105; 41 FCR 89

Parties: 

Isa Islam ( Appellant)

Director-General, Justice and Community Safety Directorate ( Respondent)

Representation: 

Counsel

Appellant (Self-represented)

A Hammond ( Respondent)

Solicitors

  Appellant (Self-represented)

Australian Capital Territory Government Solicitor ( Respondent)

File Number:

ACTCA 45 of 2022

Decision under appeal: 

Court/Tribunal:           ACT Supreme Court

Before:   Kennett J

Date of Decision:       27 May 2022

Case Title:                  Islam v Director-General, Justice and   Community Safety Directorate

Citation: [2022] ACTSC 124

THE COURT

Introduction

1․Mr Isa Islam (the appellant) was the subject of disciplinary proceedings leading to the imposition of penalties while he was incarcerated in the Alexander Maconochie Centre (AMC).

2․By way of originating application filed in the Supreme Court on 12 November 2020 (subsequently amended, most recently on 9 January 2021), the appellant brought proceedings against the Director-General of the Justice and Community Safety Directorate (the respondent), alleging that the imposition of those penalties contravened the Corrections Management Act 2007 (ACT) and the Human Rights Act 2004 (ACT). In that application, the appellant sought various declarations under both the Corrections Management Act and the Human Rights Act.

3․On 27 May 2022, Kennett J (the primary judge) held that the disciplinary action that had been taken was in breach of the Corrections Management Act and “beyond power”: Islam v Director-General, Justice and Community Safety Directorate [2022] ACTSC 124; 369 FLR 417 at 431 [56], 437 [80] (the Primary Judgment). However, his Honour found that the disciplinary action did not breach the Human Rights Act.

4․The appellant appeals from that decision. He contends that the primary judge should have found that the particular form that was used to give notice of and impose disciplinary action was, in and of itself, a breach of ss 10(1)(b) and/or 19 of the Human Rights Act. He seeks declaratory relief to this effect.

5․For the reasons outlined below, the appellant has not established a breach of s 10 or s 19 of the Human Rights Act. Accordingly, the appeal must be dismissed.

Background

6․The background to the present proceedings is set out at [1] – [10] of the Primary Judgment.

7․In brief, in October 2020, the appellant was incarcerated in the AMC. Inmates at the AMC are required to gather in the AMC recreation yard twice daily for “muster”, a process which is intended to ensure that all detainees are accounted for and to allow for checking of their wellbeing.

8․On 17 October 2020, the appellant refused a direction given by a corrections officer, CO1 Mead, to attend muster. CO1 Mead issued the appellant a written warning in relation to this incident and completed an “Officer’s Warning Form”.

9․On 18 October 2020, the appellant again refused CO1 Mead’s direction to attend muster. In response, CO1 Mead orally warned the appellant that he may be charged over his failure to attend muster, and completed an incident report form and a Discipline Form 1. Discipline Form 1 is a report of a breach prepared by an officer with direct knowledge of the breach.

10․On the morning of 19 October 2020, the Discipline Form 1 was reviewed by a supervising corrections officer, CO3 Morey. CO3 Morey prepared a Discipline Form 3 in relation to the incident, described as a “Charge Notice and Indicated Penalty”. The form recorded the indicated penalty for acceptance of the charge as:

7 days Loss of privileges; (1500 19/10/2020 - 1500 26/10/2020)

-Tobacco and toiletries only on buy up

-1 personal phone call per week
-1 Non contact visit per week.

-No access to the Multi Purpose Building

11․“Buy up” is a weekly process where inmates can purchase personal items. The proposed limitation to “buy up” had the result that the appellant was not permitted to buy additional food items such as coffee, chocolate and rice. The multipurpose centre is a common area of the AMC that is used for recreation.

12․The second page of the Discipline Form 3 reads as follows:

To be Completed by the Detainee

£  Yes     No £   

Note: if you admit to the breach and accept the proposed disciplinary action (deal with the matter by consent) the action will be carried out.

Do you: [space for name] understand the nature of the disciplinary breach and the recommended disciplinary action?

£  Admit    Do not admit £   

Do you admit to the disciplinary breach of which you are accused?

£  Yes     No £   

Do you accept the disciplinary action recommended in this notice?

Signed: ….........................

13․The form recorded the time of service as 3:00pm on 19 October 2022. It is not in dispute that the form was prepared on the morning of 19 October 2022 with the intention that it would be served on the appellant at 3:00pm.

14․The exact circumstances of the service of the Discipline Form 3 upon the appellant were disputed at trial. CCTV evidence showed that CO3 Morey, CO4 Johnston and CO2 Lawler attended the appellant’s cell between 3:30pm and 3:45pm on 19 October 2020. CO3 Morey gave evidence that he explained the charge to the appellant and requested that the appellant sign the Discipline Form 3. CO3 Morey gave evidence that the appellant replied with words to the effect of “yeah chief”, “go away chief” and “do what you want”.

15․CO3 Morey gave evidence that his understanding at the time was that the appellant did not contest the charge or the penalty. He said that he ticked the boxes on the form to indicate admission and agreement because “the discipline could not progress without the boxes ticked”. CO3 Morey did not recall whether the appellant refused to sign the Discipline Form 3 or simply refused to engage, though he noted that he (CO3 Morey) wrote “refused to sign” on the signature line.

16․The evidence of CO2 Lawler and CO4 Johnston was consistent with CO3 Morey’s account. Although the appellant initially denied that he was ever presented with the form, after being shown the CCTV footage he accepted that this may have occurred. He maintained that he had not ticked any box on the form; had not admitted the charge against him; and had not accepted the proposed penalty. (The primary judge found that service occurred in accordance with the key facts asserted by CO3 Morey: Primary Judgment at [34].)

17․The proposed penalty was subsequently imposed. Although the respondent asserted that the appellant was informed of the imposition of the penalty on 19 October 2020, the appellant gave evidence that he only became aware the penalty was implemented on 24 October 2020, when his usual “buy up” did not arrive.

Relevant legislation

The Corrections Management Act

18․Section 9 of the Corrections Management Act provides as follows regarding general standards for treatment of detainees:

9 Treatment of detainees generally

Functions under this Act in relation to a detainee must be exercised as follows:

(a) to respect and protect the detainee’s human rights;

(b) to ensure the detainee’s decent, humane and just treatment;

(c) to preclude torture or cruel, inhuman or degrading treatment;

(d) to ensure the detainee is not subject to further punishment (in addition to deprivation of liberty) only because of the conditions of detention;

(e) to ensure the detainee’s conditions in detention comply with section 12 (Correctional centres—minimum living conditions);

(f) if the detainee is an offender—to promote, as far as practicable, the detainee’s rehabilitation and reintegration into society.

19․The process for discipline of detainees is set out in Ch 10 of the Corrections Management Act.  As McWilliam AsJ (as her Honour then was) observed in Islam v Director-General, Justice and Community Safety Directorate [2021] ACTSC 33 at [23] – [24], this Chapter sets out a four stage process for dealing with an alleged breach of discipline by an inmate:

Stage 1 (the preliminary stage): applies where a corrections officer believes that a breach has occurred. After the creation of a report by that officer, a different officer determines whether the issue should lead to a charge: ss 157 – 158 of the Corrections Management Act.

Stage 2 (the internal inquiry stage): commences when a charge is issued under s 159 of the Corrections Management Act. At this stage, the detainee may elect, in writing, to have the charge dealt with by consent: s 167 of the Corrections Management Act. Where no such election is made, there is an internal inquiry, where a presiding officer (who is different to the officers involved in Stage 1) forms a view as to whether the charge is proved, and, if so, what disciplinary action should be taken.

Stage 3 (the internal review stage): the detainee may seek review by the Director-General of any decision in relation to the charge: s 173 of the Corrections Management Act. The decision of the Director-General must be in writing, notification must occur promptly, reasons for the decision must be given, and the detainee must be notified of their right to apply for external review: s 176 of the Corrections Management Act.

Stage 4 (the external review stage): which provides a further right of review to an external adjudicator. An application for external review must be made by the detainee within seven days of receipt of the Director-General’s written decision: ss 178 and 179 of the Corrections Management Act. The adjudicator must first decide whether to conduct an inquiry into the decision: s 179 of the Corrections Management Act. If an inquiry is conducted, the adjudicator may confirm, amend, or set aside the Director-General’s decision and substitute it for the adjudicator’s decision. The adjudicator is required to provide reasons and notify the detainee of the right to apply for review under the Administrative Decisions (Judicial Review) Act 1989 (ACT): s 180 of the Corrections Management Act.

20․The present proceedings concern events occurring at Stage 2. The central provisions are ss 167, 168 and 170 of the Corrections Management Act, which provide as follows:

167 Disciplinary breach admitted by accused

(1)An accused may elect to have a disciplinary charge against the detainee dealt with under this division by giving a presiding officer a written notice in which the accused—

(a)admits the disciplinary breach charged; and

(b)accepts the proposed disciplinary action stated in the charge notice.

Example of election

a signed admission and acceptance on the charge notice

Note    If a form is approved under s 228 for an election under this section, the form must be used.

[…]

168 Presiding officer’s powers—breach admitted by accused

(1)This section applies if the accused elects under section 167 to have a disciplinary charge dealt with under this division.

(2)A presiding officer may, without further investigation or inquiry, counsel the accused and take disciplinary action against the accused in accordance with division 10.3.5 (Disciplinary action).

(3)However, the only disciplinary action the presiding officer may take under this section is the disciplinary action stated as the appropriate action in the charge notice.

(4)The presiding officer must give the accused written notice of a decision made under this section.

[…]

170 Disciplinary inquiry into charge

(1)This section applies if an accused—

(a)is given a charge notice; and

(b)does not elect under section 167 to have the charge dealt with under division 10.3.1 (Disciplinary action—with accused’s consent).

(2)A presiding officer must conduct an inquiry into the disciplinary breach charged.

[…]

The Human Rights Act

21․Part 3 of the Human Rights Act recognises a number of civil and political rights. These relevantly include the following:

10 Protection from torture and cruel, inhuman or degrading treatment etc

(1) No-one may be—

(a)…

(b)treated or punished in a cruel, inhuman or degrading way.

[…]

19 Humane treatment when deprived of liberty

(1)Anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.

22․Sections 40B and 40C of the Human Rights Act apply these provisions to the AMC (as a public authority) and create a right of action against the AMC where these rights are breached, as follows:

40B Public authorities must act consistently with human rights

(1)It is unlawful for a public authority—

(a)to act in a way that is incompatible with a human right; or

(b)in making a decision, to fail to give proper consideration to a relevant human right.

(2)Subsection (1) does not apply if the act is done or decision made under a law in force in the Territory and—

(a)the law expressly requires the act to be done or decision made in a particular way and that way is inconsistent with a human right; or

(b)the law cannot be interpreted in a way that is consistent with a human right.

Note    A law in force in the Territory includes a Territory law and a Commonwealth law.

[…]

40C Legal proceedings in relation to public authority actions

(1)This section applies if a person—

(a)claims that a public authority has acted in contravention of section 40B; and

(b)alleges that the person is or would be a victim of the contravention.

(2)The person may—

(a)start a proceeding in the Supreme Court against the public authority; or

(b)rely on the person’s rights under this Act in other legal proceedings.

[…]

(6)The Supreme Court may, in a proceeding under subsection (2), grant the relief  it considers appropriate except damages.

[…]

The first-instance proceedings

The relief sought at first instance

23․In his originating application (and in later amended iterations of the application), the appellant asserted that the imposition of the penalties set out in the Discipline Form 3 was not compliant with ss 9, 159, 167 and 170 of the Corrections Management Act. The appellant also invoked s 40C of the Human Rights Act, claiming that the imposition of the penalties contravened ss 10 and 19 of that Act.

24․The appellant sought the following declarations:

(a)that the Defendant’s behaviour towards the Plaintiff (in relation to the Discipline Form 3 and penalty imposed on the 19th Oct 20) is/was in contravention of the ACT Corrections Management Act 2007 (‘Declaration 1’);

(b)that the Defendant’s behaviour towards the Plaintiff (in relation to the Discipline Form 3 and penalty imposed on the 19th Oct 20) is inconsistent/was inconsistent with the ACT Human Rights Act 2004 (‘Declaration 2’);

(c)that the Defendant’s behaviour towards the Plaintiff (in relation to the Discipline Form 3 and penalty imposed on the 19th Oct 20) did not afford the Plaintiff procedural fairness (‘Declaration 3’); and

(d)that the punishments imposed by the Defendant’s Discipline Form 3 are cruel, inhuman and/or degrading (‘Declaration 4’).

25․The appellant also sought the establishment of an Inquiry or Commission into disciplinary processes at the AMC.

26․The appellant issued a Notice of Human Rights matter to the Attorney General and the Human Rights Commission on 14 February 2021. There was no appearance by the Attorney General or the Human Rights Commission at the hearing at first instance.

The appellant’s submissions at first instance

27․In his submissions at first instance, the appellant submitted that:

(a)the incident contravened ss 158, 159, 167 and 170 of the Corrections Management Act;

(b)the nature of the Discipline Form 3 breached a “fundamental legal right” to an appeal, contravened sub-ss 9(a)-(d) of the Corrections Management Act and that the associated punishment was imposed in breach of ss 10(1)(b) and 19 of the Human Rights Act; and

(c)the specific disciplinary process applied to him contravened s 10(1) of the Human Rights Act.

28․The appellant initially asserted that he was never presented with the Discipline Form 3 and as such had never been given written notice of the charge, in breach of s 159 of the Corrections Management Act. As noted above, he later appeared to accept that he may have been presented with the form. Nonetheless, the appellant maintained that, as he had not signed the Discipline Form 3 (as reflected by the note stating “refusal to sign”), he had not elected to have the charge dealt with under the consent division. As a result, he contended the imposition of disciplinary penalties contravened ss 167(1) of the Corrections Management Act; and the failure to conduct a Discipline Inquiry contravened s 170 of that Act.

29․The appellant noted that the Discipline Form 3 stated “[t]o be completed by the Presiding Officer”. He observed that the form was completed by CO3 Morey; lists CO3 Morey as the Reporting Officer on Page 1; that CO3 Morey ticked the checkboxes; and that CO3 Morey wrote “refused to sign” and then signed and dated page 2 of the form. The appellant contended that CO3 Morey was unlawfully acting as both Reporting and Presiding Officer (presumably contrary to s 158(4) of the Corrections Management Act).

30․The appellant also contended that the Discipline Form 3 (as it was at the time of the incident) contravened sub-ss 9(a)-(d) of the Corrections Management Act. The appellant noted that the form provided no option for a detainee to appeal or elect for an inquiry before punishment is imposed. He submitted that such a punishment, which “takes place immediately, without recourse to stopping … or delaying it while an Appeal/Inquiry takes place” must be classified as indecent, inhumane, and unjust (contrary to s 9(b)); as inhuman and degrading (contrary to s 9(c)); and as a further punishment only because of the conditions of detention (contrary to s 9(d)).

31․The appellant submitted that the “fundamental shortcomings” in the Discipline Form 3 mean that associated punishment was often applied “immediately and arbitrarily with no right of appeal”. In these circumstances, he contended that the punishment was “unjust, indecent, cruel, inhuman, inhumane, degrading [and] lacking respect for the inherent dignity of the human person” and consequently breached ss 10(1)(b) and 19 of the Human Rights Act. The appellant submitted that “every single Detainee Discipline Charge … [issued] under this [form]” is therefore “put into doubt”. He further submitted that the form is unlawful as it provided no effective right of appeal, which he described as a “fundamental legal right”.

32․Finally, the appellant also submitted that ss 10(1)(b) and 19 of the Human Rights Act were breached by his specific treatment during this incident. In particular, he submitted that s 10(1)(b) of the Human Rights Act was breached by the filling out of a form and imposition of related penalties, without the option of an appeal, by another person, where he had a right to fill out the form; and s 19(1) was breached because the fraudulent completion of the form by a Corrections Officer to arbitrarily impose a punishment did not respect his inherent dignity.

The respondent’s submissions at first instance

33․In the proceedings at first instance, the respondent submitted:

(a)That the Court did not have power to issue declaratory relief;

(b)That the contraventions of the Corrections Management Act were not material; and

(c)That the incident did not limit the appellant’s rights under ss 10(1)(b) and 19 of the Human Rights Act.

34․The respondent submitted that the Court’s discretionary power to grant declaratory relief cannot be exercised where it would have no utility or produce no foreseeable consequence, even where the public interest is relevant: Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 at 582 (Mason CJ, Dawson, Toohey and Gaudron JJ); Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) [1993] FCA 105; 41 FCR 89 at 94 (Sheppard J), 106 (Foster J) and 107 (Hill J). Rather, “as a matter of discretion”, a court should not normally grant declaratory relief “where a more convenient and satisfactory remedy existed to have the disciplinary decision reviewed” or grant “bare declaration[s] of a past infringement of a right to procedural fairness”.

35․The respondent submitted that declaratory relief should not be granted in the present case, given the following:

(a)The conduct occurred in October 2020 and the disciplinary action was spent;

(b)The appellant did not contest the disobedience giving rise to the disciplinary action;

(c)The disciplinary action was no longer a relevant consideration when determining future administrative action in relation to the appellant;

(d)CO4 Johnston had given evidence that the practices which led to any contravention of the Corrections Management Act had since been changed;

(e)A more appropriate path of review was available to the appellant at all times; and

(f)Because any breach occurred as a result of a misunderstanding, which the respondent asserts arose due to the appellant’s conduct, there was no public interest in making a declaration.

36․The respondent further submitted that, in order to demonstrate that any contravention gave rise to procedural unfairness (or otherwise rendered the relevant actions beyond power), the appellant was required to demonstrate that the defect was material.

37․In this respect, the respondent contended that the appellant was not denied the opportunity to have the charge dealt with by consent under s 167, as this in fact occurred. It was also submitted that no disciplinary inquiry would have been undertaken under s 170, even if the contraventions had not occurred, as there was no evidence the appellant disputed that he engaged in the conduct giving rise to the action; disputed the charge; considered the proposed penalty disproportionate; or that the appellant would have “adduced evidence and advanced arguments in the course of a disciplinary inquiry that could have resulted in a different outcome”, in light of his history of refusing to engage with AMC processes. The respondent submitted that the penalty was relatively lenient and would likely have been upheld on review. Finally, the respondent submitted that no practical injustice occurred, as the appellant was “given notice of [and] an opportunity to respond to the charge, … [which] at best, [indicated he] did not wish to engage in the process [and] had the opportunity at any time to seek a review of the decision but chose not to do so”.

38․In relation to the alleged breaches of the Human Rights Act, the respondent relied on the principles regarding alleged contraventions of s 10(1)(b) set out by McWilliam AsJ (as her Honour then was) in Islam v Director-General, Justice and Community Safety Directorate [2021] ACTSC 33 at [86] – [97]. The respondent also referred to the principles in relation to s 19(1) discussed in Eastman v Chief Executive Officer of the Department of Justice and Community Safety [2010] ACTSC 4; 4 ACTLR 161 at [91] and [94] (Refshauge J); Castles v Secretary to the Department of Justice [2010] VSC 310; (2010) 28 VR 141 at [96] – [100] (Emerton J); and Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83; 18 ACTLR 1 at [198] (Loukas-Karlsson J).

39․Counsel for the respondent submitted that there is considerable overlap between s 10(1)(b) and s 19(1) of the Human Rights Act and that s 19(1) complements s 10(1)(b), in that it may capture lower “levels of severity” (for example, “conduct with (sic) lacks humanity, but falls short of being cruel”) and “is not limited to specific incidents of ill-treatment but may also encompass the conditions of detention”. He contended that s 19(1) takes as its “starting point … that prisoners not be subject to hardship or constraint other than the hardship or constraint that results from the deprivation of liberty”.

40․The respondent submitted that neither s 10(1)(b) or 19(1) could “possibly [be] engaged”, in view of the following matters:

(a)the appellant did not dispute that he refused to follow directions, which was the conduct that gave rise to the disciplinary action;

(b)the refusal related to an important process for maintaining detainee safety and wellbeing;

(c)although the process employed may have been defective, the punishment was otherwise legitimate;

(d)the contraventions were not intentional but rather, were the result of CO3 Morey’s bona fide misunderstanding that the appellant admitted the charge and agreed to the penalty;

(e)the penalty was for the loss of certain limited privileges for a limited time, and was on the lower end of available penalties;

(f)such privileges are distinguished from entitlements in the Corrections Management Act, and are not “basic human needs”;

(g)there was “no evidence of any inconvenience, let alone any relevant bodily injury, or mental torment or suffering”; and

(h)the appellant’s submission that there was no right of appeal from the disciplinary action was not supported by the evidence nor reflected in the relevant legislative provisions.

The first instance judgment

Contravention of the Corrections Management Act established

41․In a judgment delivered on 27 May 2022, the primary judge found in favour of the appellant on the first ground, that the imposition of the penalties was in breach of the Corrections Management Act: Primary Judgment at [43].

42․Specifically, the primary judge observed that the disciplinary action (the loss of privileges, including “buy ups” for seven days) had been taken under s 168 of the Corrections Management Act. However, action under s 168 may only be taken where a detainee “elects under s 167” to have the disciplinary charge dealt with under Div 10.3.1 of the Corrections Management Act. Section 167(1) states that a detainee may elect to have a disciplinary charge dealt with under that Division “by giving the presiding officer a written notice” in which the detainee admits the breach and accepts the proposed disciplinary action. As the appellant did not admit the breach, or accept the proposed disciplinary action, in writing, it followed that disciplinary action could not be taken under s 168. For these reasons, his Honour held that the disciplinary action had been taken in contravention of the Corrections Management Act: Primary Judgment at [40] – [43].

The disciplinary action taken was “beyond power”

43․The primary judge then considered whether this contravention had the effect that the imposition of disciplinary action was beyond power: Primary Judgment at [44] – [56]. His Honour found that the requirement for written election by a detainee to be dealt with under Ch 10 is an “essential prerequisite” to the presiding officer’s power to take disciplinary action under s 168, in light of the express words of the statute and the adverse consequences that would follow if oral election sufficed: Primary Judgment at [47], [49], citing Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; 238 CLR 627.

44․The primary judge also found, contrary to the respondent’s submissions, that the contravention was material, in that compliance with the Corrections Management Act “could realistically have resulted in a different decision”: Primary Judgment at [50] – [ 56], citing Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421. Specifically, his Honour considered that if the appellant had maintained his refusal to sign the sheet, an inquiry would have been conducted by a different officer in accordance with Ch 11 of the Corrections Management Act. His Honour held that it was possible that the appellant would have participated, and that the inquiry “might have taken a different view of the seriousness of the breach”: Primary Judgment at [55]. Accordingly, his Honour held that the imposition of disciplinary action was “affected by jurisdictional error”: Primary Judgment at [56].

Declaratory relief relating to the contravention of the Corrections Management Act

45․The primary judge then considered whether to make the declarations sought by the appellant.

46․In declining to make a declaration that the respondent’s “behaviour towards [the appellant]… did not afford the [appellant] procedural fairness” (Declaration 3), the primary judge found that while the requirements of procedural fairness in a particular case may depend on the procedures established by statute, it was “preferable” to describe the conduct as a breach of the Corrections Management Act, rather than a breach of general principles of procedural fairness: Primary Judgment at [59].

47․In relation to Declaration 1 (which sought a declaration that the respondent’s behaviour towards the appellant was in contravention of the Corrections Management Act), the primary judge commenced by reiterating his finding that “the flaw in the process undertaken on 19 October 2020 was one which deprived the disciplinary action taken against [the appellant] of a proper basis in law”: Primary Judgment at [61]. The primary judge observed that “the proposed declaration would record a real infringement of [the appellant’s] rights”: Primary Judgment at [61].

48․The primary judge acknowledged that there was no ongoing contravention of the Corrections Management Act (as the suspension of the appellant’s privileges had come to an end in October 2020), and that declaratory relief is “ordinarily not granted where it will produce no foreseeable consequence for the parties”: Primary Judgment at [60] and [62], citing Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 at 581 – 582 (Mason CJ, Dawson, Toohey and Gaudron JJ). However, his Honour noted that declarations which simply record “historical breaches of a legal … requirement” may be made where, for example, there is a public interest in defining and publishing the type of conduct that would constitute a contravention, or signifying the court’s disapproval of the relevant conduct, or where the subject of the declarations might have “practical consequences” for an appellant (including for an appellant’s reputation): Primary Judgment at [63] – [65], citing Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit FundPty Ltd [1998] HCA 49; 194 CLR 247 at [49]-[50] and Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319.

49․Given the potential that the disciplinary action of 19 October 2020 could be taken into account in future decisions made about the appellant as a detainee, the primary judge held that “the grant of a declaration would have foreseeable consequences for [the appellant]”, which distinguished the present proceedings from cases where the controversy was “hypothetical or truly moot”: Primary Judgment at [66].

50․Having found that the relief sought was “not devoid of foreseeable consequence”, his Honour observed that other considerations also supported the grant of declaratory relief: Primary Judgment at [67]. These included that the power that was exercised is public in nature and “authorises officers to impose detrimental consequences on [persons who are often] not well-equipped to look after their own interests”; that there was “no doubt” as to the appellant’s standing to seek a public law remedy; and that the nature of the disciplinary action would have allowed the appellant only seven days to commence the action and be granted relief. In view of these matters, his Honour considered that “a narrow approach to the availability of declaratory relief would make it difficult for the lawfulness of decisions of this type to be tested”: Primary Judgment at [67].

51․The primary judge rejected the respondent’s contention that the changed practices in the AMC rendered the relief of limited utility, noting that the changed practices would not remove the potential consequences for the appellant of the action that was taken: Primary Judgment at [68]. Finally, his Honour rejected the respondent’s contention that the appellant had more appropriate remedies available, including “the opportunity at any time to seek a review of the decision”, noting that the right to institute internal review did not appear to apply to disciplinary action taken under s 168 of the Corrections Management Act: Primary Judgment at [69].

52․Accordingly, his Honour made a declaration “that the decision by a presiding officer of the defendant on 19 October 2020 to take disciplinary action against the plaintiff was beyond power”: Primary Judgment at [80]. (This involved a slight redrafting of the declaration that was sought by the appellant.)

Declaratory relief relating to the Human Rights Act

53․Finally, the primary judge considered whether the “conduct of the corrections officers” through the “taking of disciplinary action against [the appellant] on 19 October 2020” was inconsistent with ss 10(1)(b) or 19(1) of the Human Rights Act: Primary Judgment at [71] – [78].

54․The primary judge noted that where the rights contained in the two sections overlap, “s 19(1) imposes higher standards on the relevant public authority”: Primary Judgment at [74]. For this reason his Honour first considered whether s 19(1) had been infringed.

55․The primary judge held that s 19(1) of the Corrections Management Act will not be infringed by “minor slights and irritations, or even the imposition of more significant detriments that have some legitimate purpose”, or “circumstances or particular acts that go hand-in-hand with being detained, such as being subject to direction and discipline by the detaining authority”: Primary Judgment at [75], citing Eastman at [91] and [94] (Refshauge J). Whilst the disciplinary action that had been taken infringed the appellant’s right to be subjected to such action only in accordance with law, his Honour held that the conduct did not contravene s 19(1) of the Human Rights Act, in light of the following factors:

(a)The appellant was subject to directions and discipline as a result of his detention.

(b)The appellant did not deny that he refused a direction to attend muster, an important process for maintaining detainee wellbeing and good order. He was therefore exposed to disciplinary action.

(c)The disciplinary action “was of short duration and not self-evidently disproportionate to the conduct”.

(d)Accepting that “taking of disciplinary action in clear disregard of a detainee’s procedural rights” may in some circumstances “amount to conduct lacking respect for their inherent dignity”, the disciplinary action in this case did not meet that description. Whilst the action was taken swiftly and in breach of legal requirements, it was only taken after an attempt to serve the notice on the appellant and to ascertain whether he accepted the action. Further, there was no evidence that CO3 Morey did not entertain an honest belief that he had power to take the disciplinary action.

See Primary Judgment at [76].

56․Accordingly, his Honour held that the disciplinary action did not breach ss 10 or 19 of the Human Rights Act and dismissed the application insofar as it relied on the Human Rights Act: Primary Judgment at [77] –  [78].

The parties’ submissions on appeal

The appellant’s submissions on appeal

57․On the appeal, the appellant sought the following orders:

(1) That the Honourable Kennett J’s second order, given on 27 May 2022, be set aside;

(2) That the respondent’s Discipline Form 3 is in breach of s 10(1)(b) of the Human Rights Act;

(3) That the punishments imposed by the respondent’s Discipline Form 3 are cruel, inhumane and/or degrading;

(4) That the punishments imposed by the respondent’s Discipline Form 3 are in breach of s 10(1)(b) of the Human Rights Act;

(5) That the Court grant the appellant prerogative relief via judicial declaration; and

(6) Any other Order that the Court considers appropriate.

58․The appellant contended that the primary judge should have found that the Discipline Form 3 was in and of itself a breach of s 10(1)(b) of the Human Rights Act. In oral submissions, this claim was also extended to s 19. The respondent did not object to this extension.

59․The appellant observed that the first two questions on page 2 of the Discipline Form 3 (“Do you understand the nature of the disciplinary breach and the recommended disciplinary action?” and “Do you admit to the disciplinary breach of which you are accused?”) were located inside a box with the heading “To be Completed by the Detainee”, while the third question (“Do you accept the disciplinary action recommended in this notice?”) and the signature line are outside this box.

60․The appellant submitted that this formatting indicated that the final question relating to acceptance of the disciplinary action was to be completed by the relevant Corrections Officer. He submitted that where that box is ticked, the detainee is dealt with under ss 167-8 of the Corrections Management Act and no inquiry is commenced under s 170, and that the form contains no other avenue of appeal.

61․In this way, the appellant submitted that the Discipline Form 3 granted the Corrections Officer the power to determine whether the detainee accepts the disciplinary action, and the power to determine whether the detainee could exercise any right of internal review. As a result, the appellant submitted that any disciplinary action imposed in accordance with the form is cruel and inhumane.

62․The appellant rejected the respondent’s submission that there is an automatic right of appeal under s 170 of the Corrections Management Act. He argued that his experience on 19 October 2020 – where disciplinary action was imposed despite his refusal to sign – demonstrated that there was “no effective right to appeal”.

The respondent’s submissions on appeal

63․In her oral submissions, the respondent’s counsel submitted that the appellant’s argument was premised on two misconceptions.

64․First, the respondent contended that the appellant’s submissions were premised on the proposition that the third question in the Discipline Form 3 (“Do you accept the disciplinary action recommended in this notice?”) is intended to be answered by a Corrections Officer, rather than the detainee. Although the respondent’s counsel accepted that Discipline Form 3 is “badly formatted”, she submitted that it was “nevertheless plain that the third question is also to be answered by the relevant detainee”. She submitted that the question is clearly not directed to the presiding officer, as the disciplinary action itself has been recommended by that officer on the first page of the form: see similarly Primary Judgment at [8], and Islam v Director-General, Justice and Community Safety Directorate [2021] ACTSC 33 at [121].

65․Second, the respondent contended that the appellant’s submissions were premised on the mistaken belief that the appellant “was required to take some positive step in order to obtain a review of, or to appeal, the disciplinary breach [and] Discipline Form 3 did not direct him as to how to take such a step”. The respondent submitted that the clear effect of the legislative scheme, and particularly ss 167 and 170 of the Corrections Management Act, is that “no positive step by a detainee is required in order to obtain a review”. Instead, if the detainee does not accept the breach, an internal inquiry will be conducted by default. If the detainee is dissatisfied with the internal inquiry, the detainee is able to seek internal, external and judicial review. The respondent noted that at each stage the detainee must be given “prompt written notice” of the availability of further review.

66․The respondent reiterated its submissions at first instance in relation to the scope and content of the rights recognised in ss 10(1)(b) of the Human Rights Act (summarised at [38] – [39] above). The respondent emphasised that both s 10(1(b) and s 19(1) require a minimum level of severity to be breached.

67․In relation to the appellant’s primary submission, that the Discipline Form 3 itself breached ss 10(10(b) and 19(1) of the Human Rights Act, the respondent’s counsel contended that “the promulgation of the form divorced from its application in any particular instance cannot breach a detainee’s human rights”. She submitted that this was particularly so for alleged breaches of ss 10 and 19 of the Human Rights Act: “the [bare] promulgation of a form cannot treat a detained person with inhumanity or without respect for their inherent dignity unless something is done with the form in relation to the person”.

68․The respondent accepted that the effect of s 170 of the Corrections Management Act (in automatically triggering an internal review if the detainee does not make an election under s 167) was not clear on the form at the time. However, the respondent submitted that this did not of itself breach the Human Rights Act: “the fact that the form does not set out a detainee’s right of review and appeal does not mean those rights do not exist, or have any impact on a detainee’s ability to benefit from those rights”.

69․The respondent’s counsel also noted that the Discipline Form 3 has been amended to include all three questions, and the signature line within the same box, and to make it clear that an internal review will occur if the detainee does not make an election under s 167 of the Corrections Management Act.

Determination

70․The focus of the appellant’s complaint on appeal shifted somewhat from the focus of the appellant’s complaint at first instance. At first instance, the appellant’s complaint centred around the disciplinary action that had been taken against him. On appeal, the appellant’s complaint was directed to the content of Discipline Form 3 per se. That is, on appeal, the appellant contended that it was both the deficiencies in the form, as well as in its application, that contravened ss 10 and 19 of the Human Rights Act.

71․The appellant’s broader contention raises a number of questions, including, whether the bare promulgation of a form is capable of constituting a breach of the Human Rights Act; whether such a promulgation, if made under a notifiable instrument, pursuant to an Act, should be characterised as an act of the Legislative Assembly under s 40(2) of the Human Rights Act, rather than as an act of a public authority to which ss 40B and 40C apply; and whether the appellant should be permitted to seek a different declaration to that which was sought at first instance.

72․It is not necessary to address those issues in order to determine the present appeal. For the following reasons, the appeal must be dismissed.

73․The primary judge held that the disciplinary action that was taken with respect to the appellant breached the Corrections Management Act. The respondent did not challenge this finding. However, not all breaches of legislation relating to prisoners will constitute a breach of the Human Rights Act. As Henry J observed in Taunoa v Attorney-General [2007] NZSC 70; [2008] 1 NZLR 429 at [386] (concerning provisions under the New Zealand Bill of Rights Act):

Unlawful treatment of a prisoner arising from an absence of, or a conflict with, legislative authority does not necessarily of itself result in a Bill of Rights Act breach. It is to be expected that the minimum standards of treatment required by legislative provisions would be significantly higher than those mandated by [relevant provisions of the Bill of Rights.

74․As the primary judge explained, it is well established that a minimum (or threshold) level of severity is required for a contravention of ss 10 and 19 of the Human Rights Act: Primary Judgment at [75], citing Eastman at [91], [94], citing Kudla v Poland (2002) 35 EHRR 11 (Refshauge J); see also Islam v Director-General of the Department of Justice and Community Safety Directorate [2021] ACTSC 33 at [99] (McWilliam AsJ, as her Honour then was) and Islam v Director-General of the Justice and Community Safety Directorate [2015] ACTSC 20 at [86] – [87] and [96] (whether there has been a contravention of s 19 is a question of “fact and degree”, per Mossop J).

75․In respect of the appellant’s claim that the disciplinary action (that is, the application of the form to the appellant) breached ss 10 and/or 19 of the Human Rights Act, the primary judge correctly concluded that the minimum level of severity was not met in circumstances where the appellant was lawfully held in custody; where he has never denied that he refused to attend muster, a refusal that exposed him to disciplinary action; where the disciplinary action that was taken was of short duration and was not clearly disproportionate to the conduct in which he engaged; and where the disregard of the appellant’s procedural rights was inadvertent rather than deliberate.

76․The appellant’s contention that the promulgation of Discipline Form 3 in and of itself contravened ss 10 and 19 of the Human Rights Act must be rejected for similar reasons.

77․In particular, contrary to the appellant’s contention, Discipline Form 3 does not confer upon a Corrections Officer the power to determine whether a detainee accepts disciplinary action, nor does it affect the legal rights of a detainee to seek review. The form does not, and cannot, affect the detainee’s rights as conferred by legislation.

78․As the respondent properly acknowledged, at the time of the events in question, the form was poorly formatted and poorly worded. As a result, it was apt to mislead. However, there is no basis to conclude that the form was so drafted in order to intentionally deceive detainees, or to intentionally deprive detainees of their ability to seek review of disciplinary action. The poor formatting was the result of a lack of attention to detail, rather than as a result of a decision to deprive detainees of their rights.

79․Whilst it is regrettable that more care was not taken to ensure that Discipline Form 3 could be understood by detainees, and lawfully applied by Corrections Officers, this sloppiness in drafting does not amount to a failure to treat detainees with “humanity” or with “respect for the inherent dignity of the human person” within the meaning of s 19 of the Human Rights Act, nor could it amount to treatment or punishment which is “cruel, inhuman or degrading” within the meaning of s 10 of that Act.

80․It follows that the appellant has not established that any of the orders which he seeks on appeal should be made. Accordingly, the appeal should be dismissed.

Orders

81․For the above reasons, the following orders are made:

(1)The appeal is dismissed.

I certify that the preceding eighty one [81] numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal.

Associate:

Date: 18 July 2024